Legal tangles cloud subsistence

Posted: Sunday, July 15, 2001

By DOUG LOSHBAUGHPeninsula Clarion

Former Kenaitze tribal chair Clare Swan said she has tried to distance herself from the subsistence fight, but cannot.

"After the Alaska Native Claims Settlement Act and signing the patents on the land, we got really popular with sport fishermen," she said. "When the money came to the state is when the divisions came. This whole business of subsistence is bound up with land ownership and loss of culture. There's a feeling of being disenfranchised. It's a very emotional thing. People have a hard time coming to terms with it."

Swan, Kenaitze chair from 1980 to 1995, said the tribe has been fighting for subsistence since the mid-1970s.

"We attended all the meetings," she said. "It was like everything was gone. It was a way of life we had. I could see that going. We dispersed," she said.

After a quarter century of struggle, subsistence is shrouded in a cloud of regulation, legislation and litigation.

But in the old days, it was simple.

"I can remember, we used to get them right out of the river in the village with a hook-and-line and dipnets made with wire and a willow hoop," said George Jackinsky, 74, who grew up in Ninilchik. "You had traps made of birch trees and wire like chicken wire. ... Then, they had regular nets you'd string across the river. You'd take what you want, then pull it out."

Most of the fishing was in tidal areas near the river, he said. Villagers caught king salmon in the spring and cohos in the fall. The first fish of the year were shared around the village.

When the sockeyes came, the men turned to commercial fishing, but someone always set a net for the village.

"The mothers, the grandmothers, the kids would fish the beaches, smoking, salting, drying and canning. There were setnets in front of the village -- one or two nets, because the whole village would share it," he said.

The population of Ninilchik was "maybe 100, counting the kids and the dogs," he said.

Swan said Kenai in the 1930s and 1940s was similar. Each spring, the men would travel to Kustatan, on the westside of Cook Inlet, for king salmon when there still was ice in the inlet. Then came sockeyes.

"The ladies in town would do red salmon. They'd dry the backbones for dog food and put up the fish for winter," she said. "We had a subsistence net in town. In summer, someone would always put a net out by Mrs. Palmer's rock, and you could go down and get your fish."

"As a kid, I was told to go snag some fish, and my dad canned them up," he said. "We'd can them right there at the cabin. We'd snag five or six fish, enough for a canner load. Then we'd snag some more. We'd put up five or six cases of fish."

Homer's Larry Smith, who moved to Anchorage in 1956, remembers setting nets down the hill from the present Hotel Captain Cook and walking home with king salmon.

"Everybody was fishing," he said. "It was just commercial fishing gear. Some was used for personal-use fishing, but there wasn't any name for it at all. There wasn't a name for it until the 1960s."

Federal managers began requiring permits for personal-use fishing in 1951 and banned personal-use gillnets from Kenai Peninsula rivers tributary to Cook Inlet in 1952. But there was little enforcement, and most people were unaware of the rules or ignored them, said Bill Knauer, subsistence policy and regulations specialist for the U.S. Fish and Wildlife Service. That changed after statehood.

In 1976, the state Board of Fisheries tried to close subsistence fishing in Kachemak Bay, precipitating a court fight with the Kachemak Bay Subsistence Group.

"The board felt the growing population meant that many more people were going to want to sport fish, and subsistence was out of place," said Smith, who led the group. "They closed it every year. We never stopped fishing. We just had to go to court to keep it open."

In 1978, the Legislature passed a law giving subsistence priority over sport and commercial use.

In 1979, the board closed the eastern shore of Cook Inlet to subsistence gillnets. In 1981, it eliminated subsistence through most of the upper inlet and created "personal-use" fisheries, which had no priority over other uses. But court and legislative actions kept changing the landscape. For more than a decade, inlet fisheries flopped between subsistence and personal use.

In 1980, Congress passed the Alaska National Interest Lands Conservation Act, requiring a rural subsistence priority and allowing state management to continue on federal lands so long as the state observed the rural preference. In 1982, the Joint Boards of Fisheries and Game passed regulations limiting the state subsistence priority to rural residents. When the courts struck those, the Legislature passed a law to limit subsistence to rural residents and define rural.

The state definition excluded most of the Kenai Peninsula. The Kenaitzes sued, arguing it was inconsistent with ANILCA. In 1989, the Ninth U.S. Circuit Court of Appeals agreed and directed the district court to grant the Kenaitzes a subsistence fishery. That led to state educational fisheries for the Kenaitzes, the Ninilchik Traditional Council and other tribes.

Bigger changes followed the Alaska Supreme Court's 1989 ruling in McDowell v. Alaska that the state's rural preference violated the Alaska Constitution, which reserves fish and wildlife for the common use of the people.

"You can't pass a law that doesn't treat all people equally," said plaintiff Sam McDowell of Soldotna and Anchorage.

The McDowell decision put the state out of compliance with ANILCA, precipitating the 1990 federal takeover of subsistence management on Alaska's federal lands. In 1990, the Federal Subsistence Board found Ninilchik, Cooper Landing, Hope, Seldovia, Nanwalek and Port Graham to be the only peninsula communities that are rural and eligible for federal subsistence. The Kenaitzes appealed.

Meanwhile, Katie John, an Ahtna Native, argued in federal court that the federal takeover of subsistence should extend to fisheries on the Copper River. In 1995, the Ninth Circuit ruled for Katie John, giving federal managers responsibility for subsistence in navigable lakes and rivers adjoining federal lands.

Congress delayed a federal takeover of subsistence fisheries to allow the state time to reconcile the conflict between its constitution and ANILCA, but there was no resolution. The Legislature rejected several proposals to amend the Alaska Constitution to allow a rural preference, and federal managers took over subsistence fisheries in 1999.

"There are a lot of issues," said Fish and Wildlife's Knauer. "One relates to state's rights and the desire by the state to manage its own resources. Another is the right of an indigenous people to continue its culture."

McDowell said the law leaves no room to allocate fish for Native cultural needs. Alaska Natives traded away aboriginal hunting and fishing rights with ANCSA, he said.

He said he has nothing against Natives, though. He sued to protect the people's rights.

"This isn't a case of Natives versus non-Natives. This is state and federal law," McDowell said.

In 2000, the Federal Subsistence Board declared the entire Kenai Peninsula rural, then received requests to reconsider. The Ninilchik Traditional Council asked it to allow subsistence harvest by all peninsula residents of all fish and shellfish. Critics feared that could displace sport and commercial fishers and tourism, or decimate the fish. In June, the board rescinded the Kenai Peninsula rural determination, leaving only Ninilchik, Cooper Landing, Hope, Seldovia, Nanwalek and Port Graham eligible for federal subsistence.

On Wednesday, Kenaitze chair Rosalie Tepp said the tribe had not yet decided how to react.

"Why can't you sit down and work together, instead of fighting and fighting and fighting?" she asked. "Why take the Kenai residents out of it? Why cater to the tourists? Why cater to the fishing guides. Why not cater to the Kenai Peninsula people? It seems like the Kenai Peninsula residents are always at the bottom of the barrel -- especially the Kenaitzes."

Tepp, who is Yupik, grew up in Hooper Bay and was adopted into the Kenaitze tribe in the 1980s.

The Kenaitzes lived the same subsistence lifestyle as the people in Hooper Bay, she said.

"We've been subsistence hunters for time immemorial," she said. "Subsistence is a form of preserving the culture, a form of being, a form of living. It's educational. We're tools to take care of the earth."

The educational fishery has allowed the Kenaitzes to educate young people and adults, she said. But it was supposed to be temporary. The 8,000-fish quota allows less than eight fish for each of the tribe's 1,149 members.

"Give us more fish -- just like those dipnetters," she said.

Other users fear that subsistence will wipe them out, but that is not true, she said. Knauer said subsistence fishers statewide take only 1 or 2 percent of the salmon catch.

Swan said it is difficult to argue with the well-reasoned arguments against subsistence: There's too many people. It has to be regulated. It's unconstitutional.

"The funny thing is, it's not really even about fish. It's about the life of the tribe," she said. "There are very reasonable arguments, but I don't want to reason the tribe out of existence."

During the struggle, she said, people asked her if she was trying to start World War III.

"I'd say no, and we didn't. We got the educational fishery. We won in federal court, and the state gave us a permit, and it's been largely successful. It gave a lot of confidence to the tribe," she said.

She said an elder from Chicken told her, " That little net is a net of consequence."

"There are families that come," Swan said. "Kids come and fish the net. There are adults that had heard about fishing in the river, but they never had done it. They did it. It's pulled us together."

Elaina Spraker, a leader in the fight against the Kenai Peninsula rural determination, said people confuse subsistence with cultural preservation.

"The Kenaitzes are an excellent example. They have cultural and traditional needs they're trying to preserve. The state has given them the educational fishery and potlatch moose hunts," she said. "Now they're trying to use Title VIII (of ANILCA) to preserve culture and tradition. But Title VIII isn't the answer. The intent of Title VIII was for places like Point Hope and Kaktovik, small places where they depend on getting the moose and putting up fish to get through the winter. That's not true here. We can go to Safeway."

Spraker said she was raised in Alaska on wild fish and game. She is raising her children in the same tradition, she said, and she doesn't need Title VIII to do it.

"It comes back to, if Rosalie works hard, she can do it. There has never been a year where we didn't fill our freezer with fish," she said.

Jackinsky said he doesn't see the difference between personal use and subsistence.

"To me, they're the same. Hook-and-line is the same, because when I catch a fish, I take it home and eat it," he said. "I do a little sport fishing. I don't call it sport. I call it subsistence fishing."

He worries about the river since the recreational fishing boom of the last 15 years. Now, so many people feel entitled to the fish, he said.

"The river is only so big," he said. "I really don't know how you'd go back and correct all that stuff that's existing now. ... If the river fails and it's overfished, what will you do then?"